Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 122
FEATURED CASE
D.C. Circuit Upheld FERC Approval of Pipeline Project Despite Concerns About Analysis of Upstream and Downstream Greenhouse Gas Impacts
The D.C. Circuit Court of Appeals rejected a challenge to the Federal Energy Regulatory Commission’s (FERC’s) environmental review for a natural gas compression station in Tennessee despite the court’s “misgivings” regarding FERC’s “decidedly less-than-dogged efforts” to obtain the information it would need to determine that greenhouse gas emissions were a reasonably foreseeable indirect effect of the project. FERC had declined to consider the impacts of upstream gas production and downstream gas combustion in its National Environmental Policy Act (NEPA) review, concluding that such impacts did not qualify as indirect effects of the project. With respect to upstream emissions, the D.C. Circuit found that the petitioners had failed to rebut FERC’s conclusion that the record did not provide evidence to establish the necessary causal relationship between the project and upstream gas production. The court indicated that such evidence might include the number and location of any wells that would be drilled as a result of production demand created by the project. The court also said the petitioners failed to “meaningfully dispute” FERC’s assertion that it would be futile to ask applicants to provide such information. Regarding downstream emissions, the court rejected FERC’s position that downstream emissions were not reasonably foreseeable because gas associated with the project might displace higher-emission fuels or otherwise offset emissions. The court also rejected FERC’s contention that FERC could not be considered the “legally relevant cause” of downstream emissions because it lacked jurisdiction over any party other than the project applicant. The court concluded that FERC is a “legally relevant cause” of such effects because the Natural Gas Act directs FERC to consider “the public convenience and necessity” and therefore provides FERC with statutory authority to act on information about the direct and indirect environmental effects of projects it approves. The court also said it was “troubled” by FERC’s reliance on a lack of information about the destination and end use of gas to justify its decision not to consider the downstream impacts. The court wrote: “It should go without saying that NEPA also requires the Commission to at least attempt to obtain the information necessary to fulfill its statutory responsibilities.” In this case, however, the petitioners had not raised the issue of FERC’s failure to develop the record in the proceedings before FERC. The court therefore concluded that it lacked jurisdiction to decide whether FERC had violated NEPA by failing to further develop the record. The court also rejected an argument that FERC had failed to adequately assess alternative sites for the project. Birckhead v. Federal Energy Regulatory Commission, No. 18-1218 (D.C. Cir. June 4, 2019).
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Review Constitutionality of Oregon Clean Fuel Program
The U.S. Supreme Court denied, without comment, a petition for writ of certiorari seeking review of the Ninth Circuit Court of Appeals decision upholding the Oregon Clean Fuel Program. The certiorari petition was filed by American Fuel & Petrochemical Manufacturers, American Trucking Associations, Inc., and Consumer Energy Alliance, who argued that the Program constituted impermissible extraterritorial regulation and discriminated against interstate commerce. American Fuel & Petrochemical Manufacturers v. O’Keeffe, No. 18-881 (U.S. May 13, 2019).
D.C. Circuit Said Organization Lacked Standing to Challenge FERC Authorization of Natural Gas Compression Facilities
In an unpublished judgment, the D.C. Circuit Court of Appeals dismissed a challenge to FERC’s authorization of compression facilities for an existing natural gas pipeline network. The court did not reach the merits of the challenge—which included assertions that FERC failed to consider upstream and downstream greenhouse gas emissions—because the organizational petitioner failed to demonstrate Article III standing and the individual plaintiffs had not timely submitted a rehearing request to FERC. The D.C. Circuit noted that the organizational petitioner had acknowledged that it was not a membership organization and had not argued that it had associational standing. The D.C. Circuit found that the petitioner also did not have organizational standing since its affidavits had not identified any injury other that expenditure of time and money related to the litigation. The D.C. Circuit said the “information[al] injury” that the organization mentioned at oral argument was not properly before the court. Otsego 2000 v. Federal Energy Regulatory Commission, No. 18-1188 (D.C. Cir. May 9, 2019).
Tenth Circuit Ordered BLM to Conduct Analysis of Cumulative Water Impacts for New Mexico Horizontal Wells
The Tenth Circuit Court of Appeals ruled that the U.S. Bureau of Land Management (BLM) had violated the National Environmental Policy Act (NEPA) by failing to consider cumulative water impacts associated with 3,960 reasonably foreseeable horizontal wells in the Mancos Shale in the San Juan Basin in New Mexico. The Tenth Circuit directed that the environmental assessments for those wells be remanded for BLM to conduct proper NEPA analysis. The Tenth Circuit’s decision did not address issues raised in the district court concerning greenhouse gas emissions. In addition, although the Tenth Circuit concluded that BLM was required to consider the cumulative impacts, including air pollution impacts, for all reasonably foreseeable wells, the court concluded that the appellants had not provided a record from which the court could assess BLM’s air analysis. The Tenth Circuit also did not reverse the district court’s conclusions that BLM had not violated the National Historic Preservation Act. Diné Citizens Against Ruining Our Environment v. Bernhardt, No. 18-2089 (10th Cir. May 7, 2019).
California Federal Court Ordered EPA to Implement Landfill Emission Guidelines
The federal district court for the Northern District of California set a schedule for the U.S. Environmental Protection Agency (EPA) to take mandatory steps to implement emission guidelines for existing municipal solid waste landfills. Although EPA did not dispute that it had failed to perform nondiscretionary obligations with respect to the guidelines, which were finalized in August 2016, EPA argued that the states that brought this lawsuit lacked standing. The court rejected this argument, finding that the state plaintiffs had standing to challenge EPA’s failure to perform nondiscretionary duties based on the “special solicitude” afforded to them under Massachusetts v. EPA, 549 U.S. 497 (2007). The court also set stricter deadlines than what EPA proposed for approval or disapproval of the existing state plans submitted by states in EPA Region 9 (California and Arizona), finding that EPA had not met its burden of showing that the timeframe EPA proposed for plans outside Region 9 was infeasible for the Region 9 plans. The court also rejected EPA’s timetable for promulgation of a federal plan. California v. EPA, No. 18-cv-03237 (N.D. Cal. May 6, 2019).
Washington Federal Court Rejected Coal Export Terminal Proponents’ Bid to Ease Quick Appeal
In a lawsuit challenging the State of Washington’s denials of approvals needed for development of a coal export terminal, the federal district court for the Western District of Washington denied a motion for entry of final judgment with respect to two orders issued in 2018. One of the 2018 orders dismissed the State’s Commissioner of Public Lands as a defendant; the other order dismissed preemption claims under the Interstate Commerce Commission Termination Act and the Ports and Waterways Safety Act. In April 2019, the court stayed the action on Pullman abstention grounds due to pending state court challenges to the State’s denials. The plaintiffs (coal companies and the companies that propose to develop the coal export facility) and an intervenor railroad company have appealed both 2018 orders and the April 2019 stay order. The plaintiffs argued in their motion that the stay order was final and appealable and indicated that the motion for entry of final judgment on the 2018 orders was merely a “precautionary measure.” The district court concluded that judicial administrative interests and equities did not favor certifying the 2018 orders as final. Lighthouse Resources Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash. May 28, 2019), appeal filed, No. 19-35415 (9th Cir. May 10, 2019).
Federal Court Granted Voluntary Remand for Supplemental Environmental Review of Oil and Gas Leases in Colorado and Utah; BLM Affirmed Decisions on Wyoming Leases After Supplemental Review
The federal district court for the District of Columbia granted federal defendants’ motion for voluntary remand of environmental assessments, findings of no significant impact, and determinations of NEPA adequacy prepared for oil and gas leasing on public lands in Colorado and Utah. The federal defendants’ motion followed the court’s March 2019 opinion finding that BLM failed to adequately quantify climate change impacts for oil and gas leasing decisions in Wyoming. The case had been separated into three phases, with each phase focused on a different state, starting with Wyoming. After the March 2019 decision, BLM determined that further analysis was also appropriate for the leasing decisions in Colorado and Utah. On remand, BLM must conduct supplemental environmental review in accordance with the March 2019 opinion. Other developments in this case include the State of Colorado’s withdrawal as an intervenor defendant and BLM’s notice of compliance indicating it had completed a supplemental environmental assessment for the Wyoming leases and had affirmed the challenged leasing decisions. WildEarth Guardians v. Bernhardt, No. 1:16-cv-01724 (D.D.C. May 29, 2019).
Lawsuit Challenging Federal Failure to Inspect Pipelines Survived Motion to Dismiss
The federal district court for the District of Montana denied a motion to dismiss a lawsuit seeking to compel the Pipeline and Hazardous Materials Safety Administration (PHMSA) and other federal defendants to perform inspections of oil and gas pipelines required by the Mineral Leasing Act (MLA). The plaintiff, WildEarth Guardians, alleges, among other things, that pipeline spills contribute to climate change. The court found that WildEarth Guardians had alleged a sufficiently particularized injury to survive a challenge to its standing. The court also concluded that a court order could redress the alleged injury and that the plaintiff had adequately stated a failure-to-act claim under the Administrative Procedure Act. In addition, the court concluded it was appropriate to exercise jurisdiction to consider the “narrow issue” of whether the defendants had failed to comply with their duty under the MLA given the lack of an administrative record or any activity before PHMSA that could provide a basis for review in the Ninth Circuit pursuant to the Pipeline Safety Act of 1979, which provides for exclusive review in the courts of appeals. WildEarth Guardians v. Chao, No. 18-cv-110 (D. Mont. May 23, 2019).
In Case Concerning Exxon Facility’s Climate Readiness, Massachusetts Federal Court Held Hearing on Motion to Stay; EPA Lawyer Answered Questions on NPDES Permit Timing
In a citizen suit asserting that ExxonMobil Corporation (Exxon) violated environmental laws by failing to prepare its marine terminal on the Mystic River in Massachusetts for the effects of climate change, the federal district court for the District of Massachusetts heard arguments on EPA’s motion to quash a subpoena for testimony by the Region 1 Water Permits Branch Chief and also on Exxon’s motion to stay the action. Exxon sought the stay pursuant to the doctrine of primary jurisdiction to allow EPA to consider Exxon’s application to renew the terminal’s National Pollutant Discharge Elimination System (NPDES) permit. The court had said any testimony by the EPA official would be limited to matters relevant to Exxon’s motion to stay, including questioning about the timing of EPA’s review of the Exxon’s application to renew its NPDES permit. Exxon argued that a stay was appropriate because it would allow EPA to resolve “technical and policy-laden questions” regarding the extent of climate change risks and the appropriate remedies for addressing those risks. Although the regional counsel for EPA Region 1 said he would instruct the Branch Chief not to testify, the regional counsel himself agreed to answer questions at the hearing, though not under oath. The regional counsel reportedly testified that EPA had a mandate to clear the permit backlog within three years but said that there was some internal “skepticism” as to whether that timeline will be met. The court dismissed the motion to quash as moot in light of the regional counsel’s appearance and took Exxon’s stay motion under advisement. Conservation Law Foundation v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass. May 6, 2019).
Hawai‘i Supreme Court Remanded Biomass Facility Power Purchase Agreement for “Explicit” Consideration of Greenhouse Gas Emissions
The Hawai‘i Supreme Court ruled that the Public Utilities Commission (PUC) had erred by failing to explicitly consider the reduction of greenhouse gas emissions before approving a utility’s amended power purchase agreement (Amended PPA) with a company that was going to construct and operate a biomass-fueled energy production facility. The court said “explicit” findings regarding greenhouse gas emissions were required by the State’s utilities law. The court also ruled that the PUC had denied Life of the Land, an environmental nonprofit organization, due process by restricting the organization’s opportunity to be heard regarding the biomass facility’s impacts. The court therefore vacated the decision and order approving the Amended PPA and remanded to the PUC for a hearing that complied with procedural due process. The hearing must include an opportunity for the organization to “meaningfully address” the Amended PPA’s impacts on the organization’s members’ right to a clean and healthful environment and must also include “express consideration of [greenhouse gas] emissions that would result from approving the Amended PPA, whether the cost of energy under the Amended PPA is reasonable in light of the potential for [greenhouse gas] emissions, and whether the terms of the Amended PPA are prudent and in the public interest, in light of its potential hidden and long-term consequences.” In re Hawai‘i Electric Light Co., No. SCOT-17-0000630 (Haw. May 10, 2019).
California Appellate Court Said County Must Support Conclusion That Requiring Solar Panels in New Residential Development Was Infeasible
The California Court of Appeal found that a revised final environmental impact report (FEIR) prepared to remedy previously identified deficiencies failed to comply with the California Environmental Quality Act because the FEIR did not include any evidence supporting its conclusion that it was infeasible to require use of solar panels to mitigate a residential development’s greenhouse gas impacts. The trial court had discharged a previously issued writ that was based both on Orange County’s improper deferral of consideration of greenhouse gas mitigation measures and also on arbitrary limits on the consideration of mitigation measures. The appellate court said that in considering whether to discharge its writ, the trial court should have addressed the argument that the County had failed to consider the impact reduction potential of solar roof panels, an additional mitigation measure that was brought to the County’s attention in conjunction with preparation of the revised FEIR. The appellate court concluded, however, that the petitioners were barred from raising an argument concerning the County’s reliance on greenhouse gas emission reductions from statewide measures because the trial court previously rejected a similar argument “spun in a slightly different way” when it first considered the case. The appellate court also rejected the petitioners’ argument that the County was required to analyze greenhouse gas reductions that would result from a reduced density alternative. Protect Our Homes & Hills v. County of Orange, No. G055716 (Cal. Ct. App. May 8, 2019).
New Jersey Appellate Court Affirmed Denial of Application to Inspect Exxon Records
An intermediate appellate court in New Jersey affirmed a trial court’s denial of the City of Birmingham Relief and Retirement System’s application to inspect ExxonMobil Corporation’s (Exxon’s) books and records. The plaintiff—a beneficial owner of Exxon stock—alleged that Exxon had for decades funded groups that discredited the scientific community’s opinions about climate change even though Exxon’s scientists shared the view that “that human-influenced global climate change was real and required a dramatic reduction in the dependence of [sic] fossil fuels.” Citing newspaper and research articles and state and federal investigations, the plaintiff sought to investigate evidence that Exxon violated New Jersey and federal law by funding these groups and by misleading investors. The appellate court found, however, that even if these motivations served as a proper purpose for inspection of company records, the plaintiffs’ evidence was “all grounded in hearsay” and insufficient to demonstrate that its allegations were credible. City of Birmingham Relief & Retirement System v. ExxonMobil Corp., No. A-4279-17T3 (N.J. Super. Ct. App. Div. May 6, 2019).
Illinois Court Rejected Utility’s Challenge to Renewable Energy Programs
The Illinois Appellate Court upheld programs approved by the Illinois Commerce Commission that provide financial support to small renewable energy generation facilities. The programs involve the generation facilities’ sale of renewable energy credits to three major electric utilities, which pass along some costs to their ratepayers. Although certain “local utilities” are not subject to the programs’ requirements, the major utilities must buy credits from small renewable generating facilities within the local utilities’ service areas. One of the major utilities challenged this aspect of the programs, arguing that the state law authorizing the programs did not intend for generation facilities within the local utilities’ service areas to be included. The court deferred to the Commission and agreed that inclusion of such facilities in the programs promoted the legislative intent for the programs to meet goals, including goals to limit carbon dioxide emissions. Commonwealth Edison Co. v. Illinois Commerce Commission, No. 17-0838 (Ill. App. Ct. May 2, 2019).
NEW CASES, MOTIONS, AND NOTICES
Oil and Gas Companies, Amici Filed Ninth Circuit Briefs in Oakland and San Francisco Climate Nuisance Cases
On May 10, 2019, oil and gas companies filed briefs in the Ninth Circuit Court of Appeals urging affirmance of the dismissal of San Francisco’s and Oakland’s climate change public nuisance lawsuits. Chevron Corporation—the only company not dismissed from the lawsuit on personal jurisdiction grounds—argued that the district court both properly denied the cities’ motion to remand the lawsuit to state court and properly dismissed the cities’ claims on the merits. With respect to remand, Chevron first argued that the plaintiffs had mooted their challenge to the denial of remand by voluntarily amending their complaint to assert federal claims and to add new parties. Chevron also argued that the cities’ claims provided federal removal jurisdiction, primarily because the nuisance claims were necessarily governed by federal common law but also based on other grounds. On the merits of the cities’ cases, Chevron argued that federal statutes displaced the cities’ common law claims to the extent the claims were based on domestic activities, whether those domestic activities were emissions of greenhouse gases from fossil fuels (for which the Clean Air Act would displace federal common law claims), oil and gas production (for which “numerous federal statutes” addressing fossil fuel policy would displace claims), or allegedly misleading advertising (for which claims would be displaced by the Federal Trade Commission Act, Energy Policy Act of 2005, and Energy Independence and Security Act of 2007). Chevron further argued that claims based on foreign conduct would be barred by the presumption against extraterritoriality. In addition, Chevron asserted that the First Amendment barred the cities’ claims and that the cities failed to plead a public nuisance claim. The other four companies—which were not residents of California—filed a separate brief arguing that the district court had properly determined that there was no specific personal jurisdiction.
Six amicus briefs were filed supporting affirmance of dismissal by the United States, 18 states, the National Association of Manufacturers (NAM), three law professors, the U.S. Chamber of Commerce, and the Washington Legal Foundation (WLF). The U.S. argued that the Clean Air Act and the Constitution’s foreign commerce and foreign affairs authorities displaced or preempted the cities’ claims. In addition, the U.S. said federal common law nuisance claims were not available to municipalities; that recognizing “such broad and novel claims” would be at odds with the Supreme Court’s narrow view of federal common law; and that the cities’ claims “would entangle the judiciary in matters assigned to the representative branches of government.” Like Chevron, the U.S. contended that the remand issue was moot. However, the U.S. alternatively urged the Ninth Circuit to find removal jurisdiction based on a ground raised sua sponte by the district court—that sea-level rise attributed to federal jurisdictional waters creates federal question jurisdiction. Eighteen states, led by Indiana, filed a brief arguing that the cities’ claims raised nonjusticiable political questions and would jeopardize cooperative federalism by undermining the national regulatory system established by the Clean Air Act. The states also argued that the cities’ claims would interfere with international agreements and obstruct state initiatives, including initiatives to promote energy production. In its amicus brief, NAM characterized the lawsuits as an attempt “to circumvent products liability law and create category liability for lawful, beneficial energy products that are essential to modern life.” NAM argued that precedent required rejection of the claims and that advancements in technology and other innovations—not lawsuits—were the best means to mitigate climate change. In their amicus brief, the three law professors asserted that the cities’ claims “would dramatically and unwisely expand” nuisance law “beyond the discrete private harms to which it has always been limited.” In its amicus brief, the U.S. Chamber of Commerce argued that the district court had jurisdiction and that state law tort claims based on climate change violate the constitutional prohibition against extraterritorial state laws. WLF’s brief argued that the cities could not establish proximate causation. The brief asserted that “[t]he path from John D. Rockefeller and his successors, on one side, to the present-day tides of the Bay Area, on the other, is too long, too winding, and too tangled to support liability.” WLF said the court should not relax the proximate causation standard to accommodate the lawsuit because doing so would violate due process and impose massive retroactive liability.
The cities’ reply brief is due July 1, 2019. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.).
California Localities Cited Additional Authorities for Limited Review by Ninth Circuit of Remand Order in Climate Cases
In fossil fuel companies’ appeal of a remand order in the climate change cases brought by the County of San Mateo and other California local governments, the local governments filed two letters notifying the Ninth Circuit of recent decisions concerning the scope of appellate jurisdiction to review remand orders. The letters cited decisions by the Fifth Circuit and Eleventh Circuit that limited appellate review to the grounds for removal for which the applicable statute provides for appellate review. The fossil fuel companies responded that the neither of the unpublished per curiam decisions “bears meaningfully on the scope of this Court’s jurisdiction to review the district court’s remand order under 28 U.S.C. § 1447(d).” The companies said the pro se appellants in the two cases had not presented, and the courts had not analyzed, the jurisdictional issues briefed in this case. County of San Mateo v. Chevron Corp., No. 18-15499 (9th Cir.).
Juliana Plaintiffs Submitted Additional Authorities to Ninth Circuit in Advance of June 4 Oral Argument
In the month leading up to oral argument on June 4, 2019, the plaintiffs in Juliana v. United States filed several letters notifying the Ninth Circuit of recent developments that the plaintiffs argued were relevant to the government’s appeal and the plaintiffs’ urgent motion for preliminary injunction. On May 8, the plaintiffs wrote that the Ninth Circuit’s recent decision in an action challenging statewide policies and practices in Arizona’s foster care system was pertinent to the Juliana plaintiffs’ standing, as well as to the issues of judicial authority to hear systemic due process cases and the plaintiffs’ state-created danger claim. The government responded, arguing that the case was not pertinent to any of these issues. On May 20, the plaintiffs wrote to bring President Trump’s Executive Order 13868 on “Promoting Energy Infrastructure and Economic Growth” to the Ninth Circuit’s attention, arguing that the order was relevant to their standing to challenge federal energy policies and practices. On May 28, the plaintiffs identified another Ninth Circuit decision as relevant to the issue of whether the district court had appropriately determined that the plaintiffs’ evidence was sufficient to defeat summary judgment on the standing issue.
On May 22, the plaintiffs filed a motion seeking judicial notice of certain federal government documents released since the plaintiffs completed briefing on their urgent motion, including documents concerning the effects of a fossil fuel-based energy system and press releases on new authorizations for coal, oil, and gas extraction on public lands and in federal offshore areas. The plaintiffs asserted that the documents both “provide additional evidence of Defendants’ systemic practices that serve to intensify and lock in Plaintiffs’ irreparable harms” and also “confirm the severity of Plaintiffs’ irreparable injuries by presenting additional evidence that the U.S. fossil fuel-based energy system is further expanding.”
Oral argument in the Juliana appeal was held on Tuesday, June 4. Judge Mary H. Murguia, Judge Andrew D. Hurwitz, and Judge Laura Staton (a district court judge for the Central District of California) are on the panel hearing the case. Video of the argument is available on the Ninth Circuit’s website. Juliana v. United States, No. 18-36082 (9th Cir.).
Shareholder Derivate Actions Filed Against Exxon Directors and Officials in Texas Federal Court
Two shareholder derivative complaints were filed in the federal district court for the Northern District of Texas against directors and certain senior officers of Exxon Mobil Corporation (Exxon). Both complaints alleged that Exxon had “a well-documented history of intentionally misleading the public concerning global climate change and its connection to fossil fuel usage, as well as the impact the changing climate will have on Exxon’s reserve values and long-term business prospects.” The plaintiffs asserted claims of breach of fiduciary duty, waste, and unjust enrichment. They also sought contribution against the individual defendants in the related federal securities class action pending in the same court (should those defendants be found liable for securities violations) and sought rescission of contracts between Exxon and the individual defendants based on any violations by the individual defendants of securities laws. On May 31, the plaintiff in one of the shareholder derivative actions filed a motion to consolidate the two lawsuits and for his appointment as lead plaintiff. von Colditz v. Woods, No. 3:19-cv-01067 (N.D. Tex., filed May 2, 2019); Montini v. Woods, No. 3:19-cv-01068 (N.D. Tex., filed May 2, 2019).
New York Trial Court to Hear Oral Arguments on Discovery Disputes, Affirmative Defenses in Attorney General’s Fraud Action Against Exxon
The New York State Supreme Court scheduled a hearing for June 12, 2019 to hear oral argument on three pending motions in the New York attorney general’s fraud action against Exxon Mobil Corporation (Exxon). The attorney general alleges that Exxon deceived investors about its management of climate change risks. The first of the three motions that the court will hear on June 12 is the attorney general’s motion to dismiss five affirmative defenses that assert that the Office of the Attorney General (OAG) committed prosecutorial misconduct in commencing and conducting the underlying investigation of ExxonMobil; the attorney general alternatively seeks a protective order limiting discovery on these defenses. In the second motion, the attorney general seeks to seal five emails between OAG attorneys and a third-party attorney in which the third-party attorney provides information to the OAG about Exxon. OAG designated the emails as confidential in its production to Exxon. In the third motion, the attorney general seeks a protective order barring Exxon from deposing OAG attorneys. The attorney general indicates that the motion to seal and motion for a protective order should only be considered if the court does not dismiss the prosecutorial misconduct affirmative defenses. Other disputes have arisen in the course of discovery but are not yet the subject of motions, including a dispute over access to former Attorney General Eric Schneiderman’s personal email account, which Exxon alleges was used to conduct official business relevant to Exxon’s defenses. People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. May 20, 2019).
Pro Se Plaintiff Filed Constitutional Climate Case in Arizona Federal Court Asking for National Plan to Remove Carbon from Atmosphere
A pro se plaintiff filed a lawsuit in federal court in Arizona against the United States, the President, and federal agencies and officials asserting that he and other class action plaintiffs were suffering from “immediate and threatened injuries” due to the defendants’ actions and inaction supporting the production and consumption of fossil fuels. The complaint asserted violations of due process, equal protection, and the public trust doctrine. The complaint also alleged that the defendants infringed on unenumerated rights protected by the Ninth Amendment, which the complaint said included “the right to be sustained by our country’s vital natural systems, including our climate system.” The plaintiff asked the court to order the defendants to prepare a consumption-based inventory of carbon dioxide emissions; to implement a “national remedial plan” to phase out fossil fuel emissions (“like that described in the congressional resolution “Green New Deal”); and to fund, research, and operationalize a methodology for “active atmospheric carbon removal.” The complaint alleged that direct atmospheric carbon removal was the “only effective relief” the plaintiff could request because “replacing or augmenting environmental protections, as requested by Juliana v. USA” would not be sufficient “to avoid the fast approaching mid-2030’s climate deadline with its grave and irreparably catastrophic effects on human life.” Komor v. United States, No. 4:19-cv-00293 (D. Ariz., filed May 29, 2019).
Appeals Filed After Alaska Federal Court Vacated Trump’s Revocation of Obama Withdrawals of Offshore Areas from Oil and Gas Leasing
The federal government, the State of Alaska, and the American Petroleum Institute appealed an Alaska federal court’s decision holding that President Trump did not have authority to revoke President Obama’s withdrawals of certain areas of the Outer Continental Shelf in the Arctic and Atlantic Oceans from oil and gas leasing. The appeals are pending in the Ninth Circuit. League of Conservation Voters v. Trump, No. 3:17-cv-00101 (D. Alaska May 28, 2019), on appeal, Nos. 19-35460, 19-35461, & 19-35462 (9th Cir.).
Lawsuit Filed Seeking Protections for Eight “Highly Imperiled” Species
The Center for Biological Diversity filed an Endangered Species Act (ESA) citizen suit in the federal district court for the Northern District of California alleging that the U.S. Fish and Wildlife Service (FWS) was in “flagrant violation” of its obligations to protect eight “highly imperiled species”: the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly. The complaint alleged that these species were among the “approximately one million species worldwide” that “face extinction in the foreseeable future as a direct consequence of human-caused habitat loss and climate change, among many other threats.” FWS deemed the listing of the eight species as “warranted but precluded” in December 2016, and the complaint asserted that FWS was now in violation of the ESA because it was not making “expeditious progress” to list other higher-priority species and had not published new findings regarding whether the listing of the eight species continued to be precluded. Center for Biological Diversity v. Bernhardt, No. 3:19-cv-02843 (N.D. Cal., filed May 23, 2019).
Federal Government Notified Montana Federal Court of Draft EA for Lifting of Federal Coal Program Moratorium; Plaintiffs Said EA Didn’t Qualify as Compliance with Court Order
The federal defendants filed a notice of partial compliance with the federal district court for the District of Montana to inform the court that it had published a draft environmental assessment (EA) that considers the environmental impacts of former Secretary of the Interior Ryan Zinke’s lifting of the moratorium on the federal coal program. The Northern Cheyenne Tribe and conservation groups subsequently filed a response indicating that they did not view publication of the draft EA as “partial compliance” with the court’s April 2019 order finding that the lifting of the moratorium required compliance with NEPA. The Tribe and conservation groups said they would therefore submit a brief regarding appropriate remedies for the federal defendants’ NEPA violations. Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-00030 (D. Mont. May 22, 2019).
Sierra Club Filed FOIA Lawsuit Seeking External Communications of Interior Officials
Sierra Club filed a new Freedom of Information Act (FOIA) lawsuit seeking to compel the U.S. Department of the Interior to update its response to previous requests for records concerning DOI officials’ external communications. The earlier requests were the subject of another FOIA lawsuit. Sierra Club alleged that the documents sought were of “significant public interest and concern” because they could potentially reveal conflicts of interest relevant to DOI activities, including efforts to open offshore areas to drilling and to make way for private development, including energy development, on public lands. Sierra Club v. U.S. Department of Interior, No. 3:19-cv-02838 (N.D. Cal., filed May 22, 2019).
Lawsuit Filed Challenging Louisiana Law That Targeted Pipeline Protests
Pipeline opponents, a journalist, landowners, community leaders, and environmental justice organizations filed a federal lawsuit challenging 2018 amendments to a Louisiana law that prohibits unauthorized entry of critical infrastructure. The complaint alleged that the amendments expanded the definition of critical infrastructure to include 125,000 miles of pipelines, which in many cases are not visible or clearly marked. The plaintiffs asserted that the law is unconstitutional on its face and as applied because it is unconstitutionally vague and allows for arbitrary and discriminatory enforcement, is overbroad, has a chilling effect on protected speech, and targets speech with a particular viewpoint for harsher punishment. They alleged that “the law’s vagueness, overbreadth, and unconstitutional aim are glaringly apparent in the felony arrests of pipeline opponents engaged in non-violent protest immediately after the law went into effect.” White Hat v. Landry, No. 3:19-cv-00322 (M.D. La., filed May 22, 2019).
Environmental Groups Filed Suit Alleging NEPA Climate Analysis for Oil-Shale Mine and Processing Plant Was Inadequate
Environmental and conservation groups filed a lawsuit in federal court in Utah challenging the U.S. Department of the Interior’s approval of rights-of-way that would enable construction and operation of commercial-scale oil-shale mine and processing plant. The complaint asserted claims under NEPA and the Endangered Species Act. With respect to climate change, the plaintiffs alleged that BLM’s analysis of climate change impacts was inadequate and failed entirely to consider the climate impacts of end-use combustion of synthetic oil carried by the pipeline associated with part of the project. Living Rivers v. Bernhardt, No. 4:19-cv-00041 (D. Utah, filed May 16, 2019).
Conservation Groups Sought Action on Yellowstone Bison
Three conservation groups filed a lawsuit to compel the U.S. Fish and Wildlife Service to take action in response to a petition to list the Yellowstone bison as an endangered or threatened distinct population segment of plains bison. The complaint alleged that the threats imperiling the Yellowstone bison include climate change. Buffalo Field Campaign v. Bernhardt, No. 1:19-cv-01403 (D.D.C., filed May 15, 2019).
Lawsuit Challenging Baltimore Clean Air Act Alleged That Law Would Lead to Increased Methane Emissions
The operators of a waste-to-energy facility and a hospital/medical/infectious waste incineration facility and three other plaintiffs filed a lawsuit in federal court in Maryland challenging a City of Baltimore ordinance, the Baltimore Clean Air Act, that the plaintiffs allege was a “targeted attempt” to shut down the plaintiffs’ facilities. The complaint alleged that the closure of the facilities would have negative environmental effects, including increased methane emissions from decomposition of waste in landfills. The plaintiffs asserted that the ordinance was preempted by federal and State law, that the ordinance was an ultra vires act, and that it violated the U.S. and Maryland constitutions. Wheelabrator Baltimore, L.P. v. Mayor & City Council of Baltimore, No. 1:19-cv-01264 (D. Md. Apr. 30, 2019).
Environmental Groups Sought Review of Approval of Minnesota Utility’s Stake in New Gas-Fired Power Plant in Wisconsin
Environmental groups petitioned the Minnesota Court of Appeals for review of the Minnesota Public Utilities Commission’s (MPUC’s) approval of agreements that gave a utility a 50% stake in a new gas-fired power plant (the Nemadji Trail Energy Center) to be constructed in Wisconsin. The environmental groups asserted that the MPUC had made its decision without satisfying the requirements of the Minnesota Environmental Policy Act and that the MPUC had ignored an administrative law judge’s conclusion that the utility agreements would not be in the public interest. Minnesota Center for Environmental Advocacy v. Minnesota Public Utilities Commission, No. __ (Minn. Ct. App. May 1, 2019).
Environmental Groups Launched CEQA Challenge to Residential Development in Southern California
Two environmental organizations filed a lawsuit in California Superior Court challenging approvals for the Northlake Specific Plan Project, which the organizations alleged “would place 3,150 dwelling units on over 1,300 acres of very high fire hazard wildlands next to the Castaic Lake State Recreation Area and the Angeles National Forest.” The organizations asserted violations of the California Environmental Quality Act, including for failures to consider the project’s greenhouse gas impacts, and of the California Planning and Zoning Law. With respect to greenhouse gases, the organizations contended that the environmental impact report (EIR) relied on an improper significance threshold; that the greenhouse gas mitigation measures were vague, deferred, or unenforceable; and that the EIR failed to establish consistency with AB 32 and other applicable state and local plans and policies. Center for Biological Diversity v. County of Los Angeles, No. 19STCP01610 (Cal. Super. Ct., filed May 1, 2019).
Renewable Energy Company Challenged Maine Approval for Hydropower Transmission Line
A renewable energy company appealed the Maine Public Utilities Commission’s approval of a transmission line for Canadian hydropower. The company contended that the approval was not supported by substantial evidence and was contrary to the law, arbitrary, capricious, and an abuse of discretion. The company asserted, among other arguments, that the Commission failed consider whether the transmission line was reasonable compared to other statutes and that the Commission’s determination that the transmission line would provide benefits to Maine was not supported by substantial evidence. In re Central Maine Power Co., No. 2017-00232 (Me. PUC, filed May 7, 2019).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
The Court of Appeal for Saskatchewan Ruled That Canadian Carbon Pricing Act Is Not Unconstitutional
By a 3-2 majority, the Court of Appeal for Saskatchewan ruled that Canada’s Greenhouse Gas Pollution Pricing Act (GGPPA) was not an unconstitutional intrusion into provincial jurisdiction. The court rejected Canada’s broader argument that Parliament has jurisdiction over “the cumulative dimensions of GHG emissions” under the national concern branch of its “Peace, Order, and good Government” [POGG] power. The Court found this approach would exceed the constitutional authority of Parliament and intrude too far into areas of Provincial authority and limit Provincial efforts to deal with GHG emissions. However, the Court did rule that Parliament has more narrow authority under the POGG to establish “minimum national standards of price stringency for GHG emissions” because this authority “has the singleness, distinctiveness and indivisibility required by the law.” Accordingly, the court ruled that the GGPPA is constitutionally valid under this narrower POGG authority. The provinces of Manitoba and Ontario have also challenged the constitutionality of the GGPPA, and those cases are pending. The Paris Agreement was among the laws discussed in the preamble of the GGPPA in regard to the need for a carbon pricing mechanism. In re Greenhouse Gas Pollution Pricing Act, Bill C-74, Part 5, No. CACV3239 (Sask. Ct. App. May 3, 2019).
Torres Strait Islanders Submitted Petition to United Nations Alleging Australia’s Failure to Address Climate Change Violates Human Rights
A group of eight Torres Strait Islanders submitted a petition against the Australian government to the United Nations Human Rights Committee. The petition alleges that Australia is violating the plaintiffs’ fundamental human rights under the International Covenant on Civil and Political Rights (ICCPR) due to the government’s failure to address climate change. This petition represents the first climate change legal action in Australia that makes an argument based on a violation of human rights. It also constitutes the first legal action filed with a UN body by inhabitants of low-lying islands against a national government for inaction on climate change.
The plaintiffs inhabit a group of islands off the northern tip of Queensland, Australia, between the Australian mainland and Papua New Guinea. These low-lying island communities are highly vulnerable to climate change impacts including sea level rise, storm surge, coral bleaching, and ocean acidification. According to materials released by the plaintiffs, the petition alleges that Australia’s insufficient action on climate change has violated the following rights under the ICCPR: Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life). The petition further argues these violations stem from both insufficient targets and plans to mitigate greenhouse gas emissions and inadequate funding for coastal defense and resilience measures on the islands, such as seawalls. Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alleging Violations Stemming from Australia’s Inaction on Climate Change
Environmental Groups Filed Suit Against Shell, Arguing the Company’s Contributions to Climate Change Violate Dutch Law and Human Rights Obligations
On Monday, April 5th, 2019, the environmental group Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations. The case was filed in the Hague Court of Appeals. Co-plaintiffs include other NGOs (ActionAid NL, Both ENDS, Fossielvrij NL, Greenpeace NL, Young Friends of the Earth NL, Waddenvereniging) and more than 17000 citizens. The plaintiffs seek a ruling from the court that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Climate Agreement.
This case builds on the landmark Urgenda decision which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens. In the suit against Shell, plaintiffs extend this argument to private companies, arguing that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its greenhouse gas emissions. Plaintiffs base this duty of care argument on Article 6:162 of the Dutch Civil Code as further informed by Articles 2 and 8 of the European Convention on Human Rights (ECHR) which guarantee rights to life (Article 2) and rights to a private life, family life, home, and correspondence (Article 8). Plaintiffs’ argument outlines how Shell’s long knowledge of climate change, misleading statements on climate change, and inadequate action to reduce climate change help support a finding of Shell’s unlawful endangerment of Dutch citizens and actions constituting hazardous negligence. Milieudefensie v. Royal Dutch Shell plc
Coal Mining Company Will Not Appeal Australian Court Decision to Uphold Government Denial of Permit
Gloucester Resources Limited did not file an appeal by the court-designated deadline of May 8, 2019. On December 19, 2017, Gloucester Resources Limited sued the Minister of Planning, appealing the denial of the company’s application to construct an open cut coal mine in New South Wales, the Rocky Hill Coal Project, which proposed to produce 21 million tonnes of coal over a period of 16 years. The Land & Environment Court of New South Wales upheld the government’s denial of the application. The court found that the project was not in the public interest after weighing costs and benefits of the project, including the climate change impacts of the mine’s direct and indirect greenhouse gas emissions. Under Section 4.15(1) of the Environmental Planning & Assessment Act (the EPA), the government is to consider the public interest as part of its review of a development application. Gloucester Resources Limited v. Minister for Planning
